AHN v. U.S.

JAE HYUN AHN, PETITIONER -AGAINST- UNITED STATES OF AMERICA, RESPONDENT

The opinion of the court was delivered by: John Keenan, Senior District Judge

OPINION and ORDER [ Page 1]

Preliminary Statement

In 1996 Jae Hyun Ahn ("Ahn") pled guilty to conspiracy to commit wire fraud, bank fraud and bribery, wire fraud and soliciting and accepting illegal payments. Ahn, a legal resident alien with a green card, was eventually sentenced to a year and one day of incarceration and three years of supervised release. Ahn has petitioned this Court to vacate his Judgment of Conviction on the basis of ineffective assistance of counsel.

Background

Ahn is a former general manager of Korea First Bank ("KFB"). He is a native and citizen of Korea. On December 13, 1994, Ahn was was charged with two counts of violating 18 U.S.C. § 1005 by issuing unauthorized loan guarantees in the name of KFB. See 94 Cr. 982 (JFK). In November of 1995, the charges against Ahn were expanded as part of a twenty-count superceding indictment brought against him and his two co-defendants. See S1 94 Cr. 982 (JFK). Although Ahn ultimately entered into a cooperation and plea agreement with the United States Attorney's Office, his cooperation was far from prompt or extensive. It was not until the government was able to obtain records through foreign governments and brought the superceding indictment — some 20 months after Ahn's arrest — that Ahn realized the government was aware of certain bribe payments and agreed to cooperate. [ Page 2]

At the time of Ahn's sentencing, April 1997, the government submitted what can at best be described as a tepid 5K1.1 letter on the petitioner's behalf. The applicable sentencing range under the Federal Sentencing Guidelines was 27 to 33 months imprisonment. Based on the government's 5K1.1 letter and the request of Ahn's counsel, Michael Sporn, Esq. ("Sporn"), the Court decided to depart downwardly. Ahn was initially sentenced to three one year sentences that were to run concurrently to one another; followed by a three year term of supervised release. The day after sentence was imposed, Sporn wrote the Court requesting the sentence be increased by a day so as to allow his client the opportunity to be released early for good behavior. See Sporn 1tr. dated 4/23/97. The Court granted the request and amended the sentence to three concurrent terms of 366 days.

Ahn did not appeal either his conviction or his sentence. On May 1, 1998, Ahn's prison term concluded, and his term of supervised release ended on May 2, 2001. Because Ahn was sentenced to a term of at least one year of imprisonment, he was subject to removal from the United States under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). On September 1, 1998, after Ahn had been released from prison but was still subject to supervised release, an Immigration Judge denied Ahn's request for a waiver of inadmissability that would have allowed Ahn to avoid deportation. [ Page 3]

The decision of the Immigration Judge was subsequently upheld and Ahn stands to be deported.

On October 9, 2002, Ahn filed a habeas corpus petition pursuant to 28 U.S.C. § 2241 with the Court seeking to have his conviction vacated. Ahn claims that he received ineffective assistance of counsel in violation of his Sixth Amendment rights. See Notice of Motion. It is Ahn's contention that Sporn was ineffective at the time of sentencing because he did not advocate for a sentence of 364 days or less so as to avoid subjecting Ahn to automatic deportation. Ahn argues that Sporn compounded his mistake by seeking to have the sentence lengthened by a day, even though the additional day resulted in less actual prison time. See Adler ltr. dated 5/13/03.

The government opposes Ahn's petition. In its initial filing with the Court, the government based its opposition on the purely procedural point that Ahn is no longer "in custody" and therefore the Court lacks jurisdiction. See Gov't Mem. in Opp. dated 2/26/03. Counsel for Ahn, no longer Sporn, responded by claiming that the Court could exercise jurisdiction over this action pursuant to the doctrine of coram nobis. See Adler ltr. dated 4/22/03. On April 28, 2003, the Court entertained oral argument. At the conclusion of oral argument, the Court instructed the parties to brief the substantive claim of ineffective assistance of counsel. [ Page 4]

Discussion

Jurisdiction

Ahn has served his prison term, his term of supervised release has expired and he is not in the custody of the Immigration and Naturalization Service ("INS"). Thus, Ahn cannot be deemed to be "in custody" and, therefore, Section 2241 does not provide the Court with jurisdiction over this petition. As the Supreme Court has made clear, "[t]he Federal habeas statute gives the United States district courts jurisdiction to entertain petitions for habeas relief only from persons who are 'in custody in violation of the constitution or laws or treaties of the United States.'" Maleng v. Cook. 490 U.S. 488, 490 (1989) (emphasis in original) (quoting 28 U.S.C. § 2241). The Second Circuit has repeatedly stated that a person who is no longer subject to incarceration or supervised release is not within the definition of "in custody." See, e.g., Williams v. Edwards. 195 F.3d 95, 96 (2d Cir. 1994); Scanio v. United States, 37 F.3d 858, 860 (2d Cir. 1994).

It is clear from the submissions and oral argument made on Ahn's behalf that the petitioner does not contest the fact that the Court lacks jurisdiction under 28 U.S.C. § 2241. Rather, it is petitioner's position that the Court can and should exercise jurisdiction under the ancient common-law doctrine of coram nobis. "A writ of error coram nobis is a traditional common-law [ Page 5]

writ that allowed for the correction of factual or clerical error in the judgment of a court by the same court that had rendered judgment." Worlumarti v. United States, 2002 WL 257817 at *2 (E.D.N.Y. Feb. 8, 2002) (citing Black's Law Dictionary 513 (6th Ed. 1990)). Although Courts are still entitled to exercise coram nobis jurisdiction, see United States v. Morgan, 346 U.S. 502, (1954), it is clear that coram nobis has become a disfavored means of exercising jurisdiction and the circumstances under which it can be exercised are narrowly limited. See Carlisle v. United States, 517 U.S. 416, 429 (1996) (stating that it is difficult for the Supreme Court to imagine a situation in which the exercise of coram nobis would be necessary or appropriate). "Coram nobis is not a substitute for appeal, and relief under the writ is strictly limited to those cases in which errors . . . of the most fundamental character have rendered the proceeding itself irregular and invalid." Foont v. United States, 93 F.3d 76, 78 (2d Cir. 1996) (internal quotations omitted). A writ of coram nobis should only be issued, and thereby litigation that would otherwise be exhausted continued, when the circumstances compel its use to right a great injustice. See Morgan, 346 U.S. at 511; Fleming v. United States, 146 F.3d 88, 90 (2d Cir. 1998).

In order for Ahn to be entitled to the extraordinary relief of the exercise of coram nobis jurisdiction, he "must demonstrate that 1) there are circumstances compelling such action to achieve [ Page 6]

justice, 2) sound reasons exist for failure to seek appropriate earlier relief, and 3) [that he] continues to suffer legal consequences from his conviction that may be remedied by granting of the writ." Foont, 93 F.3d at 79. Ahn cannot satisfy this standard.

Ahn fails to provide "sound reasons" as to why he failed to seek to have his conviction overturned earlier. Counsel for Ahn attempt to explain the delay as being the result of their not having been hired until shortly before the petition was filed and the fact that the Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289 (2001), was not decided until recently. This explanation is less than persuasive. Ahn had ample opportunity to hire his current counsel or file a pro se habeas petition long ago. Ahn knew at least before September 1, 1998, the date on which his claim for a waiver was denied, that he was subject to deportation. Thus, all of the facts that now lead Ahn to seek to have his conviction vacated were known to him long before his opportunity to file a habeas petition expired with the end of his term of supervised release. The truth of the matter is that Ahn did seek legal counsel long ago, but rather than attempting to vacate the sentence Ahn and counsel were focused on fighting the INS's decision to deport. Furthermore, the Supreme Court's decision in INS v. St. Cyr, which came more than a year before the habeas petition was filed, does not directly impact Ahn's [ Page 7]

petition and cannot be viewed as having opened the door to a habeas petition that was previously closed. The Supreme Court's holding that aliens who pled guilty prior to the enactment of the IIRIRA can still petition the Attorney General for an inadmissibility waiver does little to strengthen Ahn's claim that Sporn was ineffective. Certainly not in light of the collateral nature of deportation to Ahn's plea and the fact that Sporn secured a substantial downward departure for Ahn.

Claim of Ineffective Assistance of Counsel

Even if the Court were inclined to exercise coram nobis jurisdiction, which it is not, Ahn's ineffective assistance of counsel claim would be denied. In order to succeed on a claim of ineffective assistance of counsel, a petitioner must show (1) "that counsel's performance fell below an objective standard of reasonableness," and (2) that counsel's deficiencies were "prejudicial to the defense." Strickland v. Washington, 466 U.S. 668, 688, 692 (1984); United States v. Perez, 129 F.2d 255, 261 (2d Cir. 1997). In order to demonstrate prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, 466 U.S. at 694. In the case of a guilty plea, as here, the petitioner must prove that but for his attorney's errors he would not have pled guilty. Perez, 129 F.3d at 261. [ Page 8]

Sporn's representation did not fall below an objective standard of reasonableness. On the contrary, Sporn managed to secure for his client a substantial downward departure that reduced his time in prison by upwards of 21 months. Sporn was able to negotiate a 5K1.1 letter from the government, thereby allowing for the downward departure, in spite of the fact that his client was at best a reluctant cooperator who put the government through nearly two years of additional investigation. Securing such a favorable result can hardly be viewed as the work of an ineffective counsel.

That Ahn may not have known that he would be deported if he pled guilty does not support an ineffective assistance of counsel claim. Deportation is a collateral consequence of pleading guilty, not a direct one. See United States v. Olvera, 954 F.2d 788, 793 (2d Cir. 1992). A defendant need not be informed of all of the collateral consequences of a guilty plea. Mastrogiacomo v. United States, 2001 WL 799741 at *3 (S.D.N.Y. July 16, 2001); Grullon v. United States, 2001 WL 43603 at *8 (S.D.N.Y. Jan. 17, 2001).

It is also worth noting that Ahn does not claim that had he known he faced deportation he would not have pled guilty. Thus, there is no reason to believe that Sporn's actions in any way altered the outcome of the proceedings. In addition, even if Sporn had somehow persuaded the Court to sentence Ahn to less [ Page 9]

than a year in prison, Ahn still would have faced the prospect of deportation. The only difference is that if Ahn were sentenced to less than a year he could have petitioned the Attorney General for a waiver. Granting the waiver would have been left to the discretion of the Attorney General and by no means a certainty. Ahn, therefore, could not have known that he would avoid deportation by receiving a sentence of less than a year.

Conclusion

For the foregoing reasons, Ahn's petition to vacate his judgment of conviction is hereby denied. This case is closed and the Court directs the clerk of the court to remove this case from the Court's active docket.

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